Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Lisa A. Foster, Judge. Super. Ct. No. SCD188407
McINTYRE, J.
Jose Alfredo Briceno appeals a judgment arising out of his conviction of possession of cocaine for sale and possession of marijuana for sale. He contends that the trial court erred in (1) denying his request to continue his trial to permit him to call as a witness a codefendant who had pleaded guilty and, in so doing, claimed sole responsibility for the charged offenses and (2) refusing to admit the codefendant's plea statement into evidence. We reject Briceno's arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 18, 2005, state, local and federal law enforcement agents conducted a buy-bust operation against Jesus Flores, in which Flores sold approximately one-half pound of cocaine to a confidential informant at the apartment where Briceno, Flores and Luis Ramos all lived. After the sale, the officers arrested Flores and conducted a warrant-based search of the apartment; Briceno and Ramos were present during the search.
Inside the three-bedroom apartment, officers found a small monitor showing visual feed from a surveillance camera directed at the apartment's front walkway, as well as 7 grams of marijuana in two locations (on a shelf and in a clay pot) in the living room. Their search also turned up a baby bottle holding a small amount of marijuana and a sawed off shotgun in the closet in Briceno's bedroom, $2,325 in cash in a locked file box, a pay and owe sheet in a wooden box and ammunition in Flores's bedroom and baggies holding three to four ounces of marijuana, approximately 50 grams of cocaine and approximately 65 grams of methamphetamine, one or two smoking pipes, $164 in cash, a notebook of pay and owe sheets and two guns in Ramos's bedroom.
In a kitchen cabinet, the officers found a plastic storage container holding a half pound of loose marijuana and a wooden box containing more than 23 grams of chunk powder cocaine, an identification card in Flores's name, a note directed to Flores and $372 in cash; the cabinet also contained a digital scale and plastic baggies of the type commonly used to package drugs for sale. There was a second scale on top of the cabinet, marijuana in a plastic bag in the freezer and some other drug paraphernalia and a ballast light of the type often used in growing marijuana, also in the kitchen and dining area. The officers also found a marijuana plant growing in the backyard.
While the search was on-going, the officers arrested Briceno and Ramos. One of the officers interrogated Briceno, who indicated that he possessed some marijuana for personal use. Briceno also admitted, however, that the officers would find his fingerprints on the plastic container with the marijuana found in the kitchen and, although originally denying it, later admitted his fingerprints were also on the wooden box holding the cocaine. Ramos made statements to the officers indicating how he acquired the two guns found in his bedroom.
Flores was charged with two counts of sale of cocaine and all three men were charged with one count each of possession for sale of cocaine with personal use of a firearm, possession for sale of methamphetamine with personal use of a firearm and possession for sale of marijuana. Prior to trial, Flores pled guilty to all charges against him and, in a written declaration attached to his plea, Flores stated "I and I alone" committed each of the charged offenses.
At trial, Ramos's retained attorney, D. Chipman Venie (who also represented Flores in connection with the charges), sought to introduce Flores's plea statement as third party culpability evidence, a motion in which Briceno joined. The prosecutor objected to the introduction of the statement on hearsay grounds and requested an in camera hearing to discuss the factual basis for his objection and Venie's joint representation of Flores and Ramos.
During the in camera hearing, which was held outside the presence of Briceno and his counsel, the prosecutor disclosed to the court that Flores had been a percipient witness to a murder and had agreed to testify in the trial of the persons charged with committing it. The prosecutor also disclosed that, at his suggestion, Flores had agreed to plead guilty to the current offenses and have the judge who was going to preside over the murder case, which was scheduled for five months later, impose his sentence, ostensibly with the hope that the sentencing court would favorably consider his cooperation in the murder case.
At the hearing, the court also raised a concern about Venie's joint representation of Ramos and Flores and the potential conflict of interest that might arise if Flores were to testify. Venie responded that Flores could not be required to testify and that he would advise Flores to assert his Fifth Amendment privilege against self-incrimination. Venie also withdrew his request to admit Flores's plea statement so that he would not have to call Flores to testify. Based on Ramos's waiver of a conflict, the court did not take any action regarding Venie's dual representation; it also deferred any ruling on the admissibility of Flores's plea statement until Briceno could be heard on the matter.
At the open proceedings that followed, Briceno learned that Flores would assert his Fifth Amendment right if called as a witness and that Venie had also withdrawn the request to admit Flores's plea statement. Briceno requested that the court sever his trial and continue it until after Flores was sentenced so that he could call Flores to testify on his behalf. The prosecutor pointed out that Flores's sentencing would not occur until after completion of the murder trial, which was not scheduled to start for several months, and that a continuance would not help Briceno in light of Venie's representation that Venie would advise Flores to assert the Fifth Amendment privilege even after sentencing. The court denied Briceno's request to sever and continue his trial.
Briceno made an alternative request that the court allow him to introduce evidence of Flores's plea statement that he and he alone committed the charged offenses. Over the prosecutor's objection that the statement was inadmissible hearsay, Briceno argued that the statement was admissible pursuant to the declaration-against-interest exception to the hearsay rule. The court initially concluded that the "and I alone" part of Flores's plea statement was not a declaration against Flores's interest, but later excluded the entire statement on the grounds that it was unreliable and irrelevant because it did not preclude the other defendants from being guilty of possession, as broadly defined under state law. The court did, however, take judicial notice that Flores had pleaded guilty to all the charges.
Briceno did not present any independent defense evidence at trial and a jury found him guilty of possession of cocaine for sale with personal use of a firearm and possession of marijuana for sale, but acquitted him of possession for sale of methamphetamine and its lesser included offenses. The court suspended imposition of punishment and placed Briceno on three years' probation, subject to certain conditions, including 240 days in the custody of the sheriff. Briceno appeals.
DISCUSSION
1. Denial of a Continuance
Briceno contends that the trial court abused its discretion and violated his federal constitutional rights in denying his request for a continuance of his trial to permit him to call Flores as a witness. A criminal defendant must show good cause to obtain a continuance of trial (Pen. Code, § 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037), whether the request is based on the need to conduct further investigation, to secure the attendance of a witness or to substitute counsel. (People v. Sakarias (2000) 22 Cal.4th 596, 647 [investigation]; People v. Roybal (1998) 19 Cal.4th 481, 504 [witnesses]; People v. Smithey (1999) 20 Cal.4th 936, 1011 [substitute counsel].) Where, as here, the defendant seeks a continuance to secure the attendance of a witness, he must establish that he "exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171.)
The trial court has broad discretion to determine whether good cause for a continuance exists (People v. Roldan (2005) 35 Cal.4th 646, 670), although the defendant's constitutional rights to counsel and due process of law preclude that discretion from being exercised in such a way as to deprive the defendant or his attorney of a reasonable opportunity to prepare a defense and respond to the charges. (People v. Sakarias, supra, 22 Cal.4th at p. 647; People v. Bishop (1996) 44 Cal.App.4th 220, 231.) Nevertheless, the defendant's burden on appeal is to establish that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice (see People v. Jordan (1986) 42 Cal.3d 308, 316), a burden that is only rarely met. (See 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 332, pp. 489-490.) In determining whether Briceno has met that burden here, we must look to the circumstances of the case and those surrounding the continuance request, paying particular attention to the reasons proffered to the trial court as a basis therefore. (People v. Courts (1985) 37 Cal.3d 784, 791.)
Here, Briceno requested a continuance for the sole purpose of obtaining Flores's testimony at his trial. The court denied the motion based on its findings that (1) Flores was not likely to be sentenced for up to nine months; (2) Flores was entitled, and, based on his counsel's representations that he would be advised to do so, was likely, to assert his Fifth Amendment right against self-incrimination if called to testify in Briceno's trial; and (3) based on such advice, Flores might assert that right even after he was sentenced. Briceno challenges the court's ruling in several respects.
First, Briceno argues that, as a result of the guilty plea, Flores generally waived the privilege against self-incrimination, and that the limited rights Flores retained thereafter would not have allowed Flores to refuse to testify at his trial after sentencing. However, the law is well-established that a criminal defendant who pleads guilty may nonetheless assert the right against self-incrimination until such time as there can be no further adverse consequences from testifying, which is, at a minimum, after he is sentenced and either the time for appeal from the conviction has run or his timely appeal is resolved. (People v. Fonseca (1995) 36 Cal.App.4th 631, 633-638; see also In re Courtney S. (1982) 130 Cal.App.3d 567, 573; see generally Mitchell v. United States (1999) 526 U.S. 314, 326 [privilege lapses when the witness's "sentence has been fixed and the judgment of conviction has become final"]; compare Ex parte Cohen (1894) 104 Cal. 524, 528 [privilege retained until after the witness serves his sentence].)
Second, Briceno argues that the trial court erred in accepting Venie's representations that Flores would assert the privilege against self-incrimination and refuse to testify even after Flores was sentenced. Briceno is correct that, before sustaining a claim of privilege, a trial court must generally require that the witness be sworn, be asked specific questions and assert the privilege in response thereto. (See People v. Ford (1988) 45 Cal.3d 431, 441.) Here, however, the court did not, nor was it asked to, make a final determination of whether Flores could properly assert a claim of privilege as against specific questions Briceno might have asked him and Briceno does not cite any authority establishing that it was required to do so in ruling on his request for a continuance. Rather, the court was merely complying with the requirement that, in ruling on the continuance request, it consider the likelihood that the benefit Briceno hoped to obtain as a result of a continuance would actually occur. (People v. Laursen (1972) 8 Cal.3d 192, 204.)
Finally, Briceno contends that the court abused its discretion in denying his request for a continuance because the ruling precluded him from being able to present his theory of defense that he was only culpable for possessing small amounts of marijuana for personal use. However, the court's denial of a continuance did not preclude Briceno from presenting evidence, including his initial statements to the investigating officers, or from arguing in support of this defense at trial.
Here, the trial court considered Briceno's desire to have Flores testify at his trial (with the assumption that Flores would give testimony exonerating him), the likelihood that a continuance would result in Flores's testifying and the burdens that would result from a continuance (see People v. Laursen, supra, 8 Cal.3d at p. 204 [setting forth these factors as considerations in ruling on a request for a continuance]) and determined that a continuance was not justified. In light of the fact that continuances in criminal cases are "disfavored" (Cal. Rules of Court, rule 4.113; see also Pen. Code, § 1050), we cannot conclude that the trial court's decision was made in an arbitrary, capricious or patently absurd manner or that it resulted in a manifest miscarriage of justice.
2. Exclusion of Third Party Culpability Evidence
Briceno alternatively contends that the court's exclusion of Flores's plea statement violated his constitutional rights to present a defense, to a fair trial and to due process of law because the statement was third party culpability evidence that was within the declaration-against-interest exception to the hearsay rule.
A. Admissibility of Third Party Culpability Evidence Generally
A defendant has a right to present evidence of third party culpability if that evidence could raise a reasonable doubt about his guilt. (People v. Hall (1986) 41 Cal.3d 826, 833; People v. Basuta (2001) 94 Cal.App.4th 370, 386-387.) The courts treat third party culpability evidence "like any other evidence: if relevant[,] it is admissible . . . unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion[.]" (People v. Hall, supra, 41 Cal.3d at p. 834, citing Evid. Code, §§ 350, 352.) We review the trial court's determination of this issue for abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372.)
A defendant seeking to introduce third-party evidence must show that the evidence is sufficient (1) to link the third person either directly or circumstantially to the actual perpetration of the crime (People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Hall, supra, 41 Cal.3d at p. 834) and (2) to raise a reasonable doubt as to whether he committed the crime. (People v. Hall, supra, 41 Cal.3d at p. 835.) Here, there is no question that Flores's statement linked him directly to the perpetration of the charged offenses and thus the relevant question becomes whether the statement was sufficient to raise a reasonable doubt as to whether Briceno committed the offenses of possession for sale of cocaine, methamphetamine and marijuana.
Third party culpability evidence clearly raises a reasonable doubt as to the defendant's guilt where the evidence otherwise establishes that the crime was committed by one person; in that circumstance, if the third party committed the offense, the defendant, perforce, is not guilty. The situation is more difficult, however, where the evidence is sufficient to show that multiple perpetrators committed the crime or in other circumstances where a third party's culpability does not suffice to absolve the defendant's guilt. (See People v. Hall, supra, 41Cal.3d at p. 835 [noting that evidence of a third party's participation would not tend to exculpate the defendant where there was "no testimony or circumstantial evidence limit[ing] the number of perpetrators"].)
Here, the trial court appears to have concluded in part that Flores's statement was not sufficient to raise a reasonable doubt as to whether Briceno was also guilty of the possession for sale charges. To establish Briceno's guilt of possessing these drugs for sale, the prosecution was required to show that Briceno (1) exercised dominion and control over the drugs, either directly or through another person; (2) was aware of presence of the drugs; (3) knew of their nature as controlled substances; (4) possessed amounts of the drugs sufficient to be used for sale or consumption; and (5) had the specific intent to sell them. (People v. Parra (1999) 70 Cal.App.4th 222, 226.)
Although Flores could not competently opine that Briceno was unaware of the presence of drugs in the apartment or that Briceno was unaware the drugs were controlled substances, his statement that he alone committed the charged offenses might have been sufficient to create a reasonable doubt as to whether Briceno exercised dominion and control over the drugs in the apartment. Accordingly, Flores's statement was clearly relevant. Further, there was no basis for concluding that the probative value of such evidence was substantially outweighed by the risk of undue delay, prejudice or confusion. (Evid. Code, § 352; People v. Hall, supra, 41 Cal.3d at p. 834.) Accordingly, the trial court would have abused its discretion in excluding the evidence unless the evidence was subject to exclusion under other applicable evidentiary principles. (People v. Hall, supra, 41 Cal.3d at p. 834.)
B. Hearsay
The prosecution's objection to the admissibility of the plea statement was that the statement was hearsay; Briceno, however, insists that the statement was admissible pursuant to the declaration-against-interest exception to the hearsay rule. That exception is set forth in Evidence Code section 1230, as follows:
"Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
One who requests the admission of evidence pursuant to this exception must show that the declarant is unavailable, that the declaration was against the declarant's interest when made, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) Here, the parties appear to agree that Flores was unavailable to testify because he would have asserted his privilege against self-incrimination, so the focus of our inquiry is on whether the trial court abused its discretion in concluding that Flores's plea statement was neither against Flores's interest nor sufficiently reliable to be admissible.
i. The Declaration-Against-Interest Exception
The declaration-against-interest exception to the hearsay rule does not apply to collateral assertions contained in otherwise inculpatory statements, because such extraneous matters are generally deemed to be untrustworthy. (People v. Duarte, supra, 24 Cal.4th at p. 612.) Thus, only that portion of a statement that is "specifically disserving" to one's penal interest will be admissible under the exception and any other portions must be excised. (Ibid., citing People v. Leach (1975) 15 Cal.3d 419, 441.)
Here, the court found that the "and I alone" portion of Flores's plea statement was not inculpatory and thus not admissible as a statement against Flores's interest. Although Briceno argued below that Flores's acceptance of sole responsibility for the charged offenses was against Flores's interest because it would support the imposition of an aggravated sentence, the weight of the law does not support that argument. (Cal. Rules of Court, rule 4.421(a); People v. Proctor (1992) 4 Cal.4th 499, 553 [citing a long line of California Supreme Court precedents holding that a defendant's sole participation in a crime cannot be considered an aggravating sentencing factor, but recognizing the high court's deviation from these authorities, without mentioning them, in People v. Howard, supra, 1 Cal.4th at p. 1195; see also People v. Carpenter (1997) 15 Cal.4th 312, 414-415.) Further, a defendant's acceptance of responsibility for a crime "at an early stage of the criminal process" may in fact be considered a mitigating sentencing factor. (Cal. Rules of Court, rule 4.423(b)(3).)
For these reasons, we conclude that the court did not err in holding that the "and I alone" portion of Flores's plea statement was not inculpatory and thus not a statement against his penal interest.
ii. Reliability
Even if Flores's plea statement accepting sole responsibility for the charged offenses could otherwise properly be considered as an aggravated sentencing factor and thus qualify as a statement against penal interest, we would nonetheless uphold the trial court's decision to exclude Flores's entire plea statement on the grounds that the statement was not supported by sufficient indicia of trustworthiness to warrant admission. (People v. Duarte, supra, 24 Cal.4th at pp. 610-611.)
In determining whether a particular statement against interest is sufficiently trustworthy to be admissible, a trial court must consider the statement, the circumstances in which it was made, "the possible motivation of the declarant, and the declarant's relationship to the defendant." (People v. Duarte, supra, 24 Cal.4th at p. 614, quoting People v. Cudjo (1993) 6 Cal.4th 585, 607.) The fact that a declarant's statement "incorporates an admission of criminal culpability" alone cannot establish trustworthiness. (People v. Duarte, supra, 24 Cal.4th at p. 611, quoting People v. Campa (1984) 36 Cal.3d 870, 883; also Williamson v. United States (1994) 512 U.S. 594, 599-600 [recognizing that "[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-inculpatory parts . . . [and that one] of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature"].)
Here, the trial court considered Flores's statement and the context in which it was made and concluded that Flores was likely motivated to claim sole responsibility for the crimes so that Ramos and Briceno would not also be subjected to criminal liability for them. The fact that Flores had an opportunity to receive a more favorable sentence based on his cooperation as a witness in a separate murder trial provides further support for the trial court's conclusion that his plea statement was not sufficiently reliable to warrant admission. Under these circumstances, the trial court did not abuse its discretion in excluding the plea statement based on lack of sufficient trustworthiness. (People v. Lawley (2002) 27 Cal.4th 102, 153.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P.J., O'ROURKE, J.